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Corporation vs. LLC – Explaining the Basics

Posted on Sunday, September 2nd, 2012 by

The Corporation vs. the LLC -

In this article: Corporations, S-Corporations, L.L.C.s, Taxation, different rules for single-person LLC s, tax forms, and more…

 The C-Corporation:

The label, “C-Corporation” merely refers to a standard, general-for-profit, state-formed corporation. Characteristics of the “C-Corporation” include the following:

Separate Legal and Tax life . A corporation which is properly formed and operated as a corporation assumes a separate legal and tax life distinct from its shareholders. In such a case, a corporation may need to use a tax estimator to determine what it owes. A corporation pays taxes at its own corporate income tax rates and files its own corporate tax forms each year IRS Form 1120.

Management and Control. Normally, a corporation’s management and control is vested in its board of directors who are elected by the shareholders of the corporation. Directors generally make policy and major decisions regarding the corporation but do not individually represent the corporation in dealing with third persons. Thus, transactions with third persons and day-to-day activities are conducted through officers and employees of the corporation to whom authority is delegated by the directors of the corporation.

Shareholders. Shareholders are the owners of a corporation. Although shareholders have no power over the corporation’s daily activities, shareholders possess the ultimate power in that they can appoint or remove Directors of the corporation.

Directors. The Board of Directors is responsible for the long-term management and policy decisions of the corporation. While the Directors are considered to have the highest level of DIRECT control over the corporation, there are, however, a few instances when the shareholders are required to approve Actions of the Board of Directors (e.g. amendment to the Articles of Incorporation, sale of substantially all of the corporate assets, the merger or dissolution of the corporation, etc…).

Corporate Officers. Corporate officers are elected by the Board of Directors and are responsible for conducting the day-to-day operational activities of the corporation. Corporate officers usually consist of the following: (President, Vice-President, Secretary, Treasurer).

Management & Staff. Management and Staff are DIRECTLY responsible for the daily activities of the corporation.

One Person Required. In most states, one or more persons may form and operate a corporation. Some states, however, require that the number of persons required to manage a corporation be at least equal to the number of owners. For example, if there are only two shareholders, there must also be a minimum of two directors serving on the board.

Fringe Benefits. Corporations may often offer their employees unique fringe benefits. For example, owner-employees may often deduct health insurance premiums paid by the corporation from corporate income. In addition, Corporate-defined benefit plans often afford better retirement options and benefits than those offered by non-corporate plans.

Corporate Formalities. To retain the corporate existence and thus the benefits of limited liability and special tax treatment, those who run the corporation must observe corporate formalities. Thus, even a one-person corporation must wear different hats depending on the occasion. For example, one person may be responsible for being the sole shareholder, Director, and Officer of the corporation; however, depending on the action taken, that person must observe certain formalities: Annual meetings must be held, corporate minutes of the meetings must be taken, Officers must be appointed, and shares must be issued to shareholders. Most importantly, however, the corporation should issue stock to its shareholders and keep adequate capitalization on hand to cover any “foreseeable” business debts.

Shareholder Liability for Corporate Debts. Where corporate formalities are not observed, shareholders may be held personally liable for corporate debts. thus, if a thinly capitalized corporation is created, funds are commingled with employees and officers, stock is never issued, meetings are never held, or other corporate formalities required by your state of incorporation are not followed, a court or the IRS may “pierce the corporate veil” and hold the shareholders personally liable for corporate debts.

Avoiding Double Taxation. Generally, the corporation is taxed for its own profits; then, any profits paid out in the form of dividends are taxed again to the recipient as dividend income and the individual shareholder’s tax rate. However, most small corporations rarely pay dividends. Rather, owner-employees are paid salaries and fringe benefits that are deductible to the corporation. The result is that only the employee-owners end up paying any income taxes on this business income and double taxation rarely occurs. NOTE: See “The S-Corporation” below as a popular taxing alternative for corporations.

Duration of a Corporation. As a separate legal entity, a corporation is capable of continuing indefinitely. Its existence is not affected by death or incapacity of its shareholders, officers, or directors or by transfer of its shares from one person to another.

 

The S-Corporation:

An S Corporation begins its existence as a “C-Corporation” (discussed above) — (i.e. as a general, for-profit corporation upon filing the Articles of Incorporation with the appropriate STATE office. However, after the corporation has been formed, it may elect “S Corporation Status” by submitting IRS form 2553 to the Internal Revenue Service (in some cases a state filing is required as well). Once this filing is complete, the corporation is taxed like a partnership or sole proprietorship rather than as a separate entity. Thus, the income is “passed-through” to the shareholders for purposes of computing tax liability. Therefore, a shareholder’s individual tax returns will report the income or loss generated by an S corporation.

Qualifying for S Corporation Status. To qualify as an S corporation, a corporation must timely file IRS Form 2553 with the IRS. This election must be made by March 15 of the current year if the corporation is a calendar-year taxpayer in order for the election to take effect for the current tax year. However, a “New” corporation may make the filing at anytime during its tax year so long as the filing is made no later than 75 days after the corporation has began conducting businessas a corporation, acquired assets, or has issued stock to shareholders (whichever is earlier).

To qualify for S corporation status, the corporation must:

bulletBe filed in one of the 50 United States.

bulletMaintain only one class of stock.

bulletMaintain a maximum of 75 shareholders.

bulletBe comprised SOLELY of shareholders who are individuals, estates or certain qualified trusts, who consent in writing to the S corporation election.

bulletNOT have a shareholder who is a non-resident alien.

Losing S-Corporation Status. Failure to observe ANY of the above requirements could revoke S-Corporation status at any time. An S-Corporation that loses its status as such may not re-elect S-Corporation status for a minimum of five years.

Corporate Formalities. An S-Corporation follows the same state formalities as does a C-corporation (i.e. filing Articles of Incorporation and paying state fees).

IRS Filings. The S-Corporation must complete and file IRS Form 1120s to report its annual income to the IRS each year.

General Shareholder Requirements. ALL shareholders of the corporation must be U.S. Citizens or have U.S. Residency Status. If, for any reason, shares are somehow sold or transferred (even if by will, divorce, or other means) to a shareholder who is a foreign national, the corporation will lose its S-Corporation status and be treated as a C-Corporation.

Who Should Elect S-Corporation Status? Owners who want the limited liability of a corporation and the “pass-through” tax-treatment of a partnership will often make the S-Corporation election. In most cases, corporations that would benefit from S-Corporation status are those who plan on distributing the majority of earnings to its shareholders in the year those earnings are realized. Corporations who plan on retaining earnings for future investments in future tax years often choose the C-Corporation because, under the S-Corporation, earnings will be taxed as if they were distributed to shareholders regardless of whether a distribution actually occurred or whether the corporation retained the earnings for future investment.

 

The Limited Liability Company (L.L.C.):

Rules governing the Limited Liability Company (L.L.C.) are usually distinct from the rules and laws governing corporations. In general, however, the L.L.C. is a state-created entity intended to provide it’s members / owners with the limited liability afforded to corporate shareholders while minimizing many of the formalities corporations are required to observe. If you are considering forming an L.L.C., you should be aware of the following facts:

IRS Treatment of the Two-Member LLC . If your LLC has two or more owners, The IRS will tax the LLC owners as if the owners were members of a partnership. A partnership files Form 1065 (U.S. Partnership Return of Income).

IRS Treatment of the One-Member LLC . An LLC with only one member / owner is taxed by the IRS as a sole proprietorship is taxed. Thus, the sole member of an LLC will file (Form 1040), (U.S. Individual Income Tax Return) and will include (Form 1040, SCHEDULE C) (Profit or Loss from Business) with his/her tax returns.

Tax My LLC as a Corporation!” Regardless of how many members the LLC has, the LLC may file an Election to be Treated as a Corporation for Purposes of Taxation (IRS Form 8832). If an election is made to be treated as a corporation, the LLC must file Form 1120 (U.S. Corporation Income Tax Return). IRS Form 1120, Form 1120 Instructions

Minimum Members Required by State Law. Traditionally, most states have required that an LLC consist of two or more members (owners). Recently, however, the majority of states are allowing single-member LLC s.

Separate Legal Entity Status. Similar to the corporation, an LLC is recognized as a separate legal entity from its “members.” Thus, an LLC can own property, commit itself to contractual obligations, and even commit crimes.

Limited Liability for Members (owners). In most cases, only the LLC is responsible for the company’s debts thus shielding its members from personal liability. However, there are some exceptions where individual members may be held liable:

1. Guarantor Liability. Where an LLC member has personally guaranteed the obligations of the LLC , he or she will be liable. For example, where an LLC is relatively new and has no credit history, a prospective landlord about to lease office space to the LLC will most likely require a personal guarantee from the LLC members before executing such a lease.

2. Alter Ego Liability. Where an LLC member has personally guaranteed the obligations of the LLC , he or she will be liable. For example, where an LLC is relatively new and has no credit history, a prospective landlord about to lease office space to the LLC will most likely require a personal guarantee from the LLC members before executing such a lease.

Fewer Formalities than the Corporation. Although a corporation’s failure to hold shareholder or director meetings may subject the corporation to alter ego liability, this is not the case for LLC s in most states. An LLC ‘s failure to hold meetings of members or managers is not usually considered grounds for imposing the alter ego doctrine where the LLC ‘s Articles of Organization or Operating Agreement do not expressly require such meetings.

Shared Management and Control. Management and control of an LLC is vested with its members unless the articles of organization provide otherwise.

Voting Interest According to Ownership. Ordinarily, voting interest directly corresponds to interest in profits which directly corresponds to share of ownership unless the articles of organization or operating agreement provide otherwise.

Transfer Requires Majority Consent. No one can become a member of an LLC (either by transfer of an existing membership or the issuance of a new one) without the consent of members having a majority in interest (excluding the person acquiring the membership interest) unless the articles of organization provide otherwise.

Perpetual Duration. Traditionally, most states did not allow an LLC to have a perpetual existence; LLC s were traditionally required to specify the date on which the LLC ‘s existence would terminate. Today, however, most states allow a perpetual duration for an LLC if stated in its articles of organization.

Dissolution Upon Certain Events. Unless otherwise provided in the articles of organization or a written operating agreement, an LLC is dissolved at the death, withdrawal, resignation, expulsion, or bankruptcy of a member (unless within 90 days a majority in both the profits and capital interests vote to continue the LLC ).

Operating Agreement Required. To validly complete the formation of the LLC , members must enter into an Operating Agreement. This Operating Agreement may come into existence either before or after the filing of the Articles of Organization and depending on your particular state’s laws, may be either oral or in writing.

Different Laws in Different States. While laws governing corporations have grown to be quite uniform amongst the different states over time, LLC statutes can vary quite drastically from state to state. This is most likely due to the fact that the LLC is a VERY new form of business structure only recently recognized by most governments (e.g. Hawaii only recently began recognizing the LLC as a legitimate form of businessin 1997.

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2 Responses to “Corporation vs. LLC – Explaining the Basics”

  1. dodie knight says:

    I’m pretty impressed so far with what I see on your website. I am considering incoporating my craft based business because it is really beggining to take off. But first, can you possibly address this question? I have researched everything upside down, sideways, and crossways that I can think of pertaining to small business corporations, but this is the only thing I can’t find a specific answer to. It is my understanding that if an individual creats a sole corporation, then has a personal default along the way (i.e., a personal bankruptsey) if the corporation has any assets, they can be seized. In an LLC arrangement, any assets in the business cannot be seized. Is this correct? State: Louisiana. Thank you, d.k.

  2. Jeremy Winter says:

    I too appreciate the post. However…

    The AJCA of 2004 amended sec. 1361(b)(1)(A) to limit the number of S-corp shareholders at 100 from 75.

    It stands to reason that there may be other very aged information included. Consequently it should generally not be trusted.

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